Occasionally I offer up an inquiry from a reader and step aside. This is one of those occasions.
Blake Reagan is a lawyer who works as a contract administrator for The University of Tennessee. I got to meet him at my recent “Drafting Clearer Contracts” seminar in Los Angeles. He’s a thoughtful and no-nonsense guy, so I paid attention when he sent me the following:
One issue that I regularly encounter with software contracts is that the licensor will have a written license and the license contains an entire-agreement clause. The vast majority of software products contain click-wrap or browse-wrap terms. It’s rare for the written license to refer to the click-wrap or browse-wrap terms.
I can’t discuss the details because it involves confidential settlements and also pending litigation, but it’s apparent to me that software vendors believe that both their written license and their click-wrap or browse-wrap licenses apply, despite the written license’s entire-agreement clause. There have been some consequences as a result of the university’s failure to address the applicability of the click-wrap or browse-wrap terms.
The written license and the click-wrap or browse-wrap almost always conflict. This issue is particularly troublesome for government entities. I work for a public university, and we negotiate the written license. The click-wrap, browse-wrap, or shrink-wrap terms almost always contain governing law, indemnity, arbitration, etc., which are universally problematic for government entities, and also conflict with the written license we negotiate. Due to the consequences the university has faced, I would like to add some language to the entire-agreement clause that specifically excludes click-wrap, browse-wrap, and shrink-wrap terms.
I’d love to hear your thoughts on this issue.
Before I attempt to create the kind of language Blake is seeking, I thought I’d see what you all have to say.